Wednesday, October 23, 2013

Legal significance of the UNDRIP

The Special Rapporteur on
the Rights of Indigenous Peoples yesterday submitted his annual report to the
United Nations General Assembly. This
will be the final such report to the General Assembly to be presented by the
current Special Rapporteur, James Anaya, as his term as Special Rapporteur will
end in April 2014. This report provides
an interesting reflection on the Special Rapporteur’s work over the six years
that Anaya has been in the role.

He concludes his report
with some key recommendations aimed at encouraging more effective and more
comprehensive implementation of the UN Declaration on the Rights of Indigenous
Peoples. Some of these recommendations are particularly relevant to the New
Zealand context.

However, the Special Rapporteur
notes that the Declaration does have significant legal implications. First, it informs the binding human rights
obligations that States have under the UN Charter:

Although technically a
resolution, the Declaration has legal significance, first, because it reflects
an important level of consensus at the global level about the content of
indigenous peoples’ rights, and that consensus informs the general obligation
that States have under the Charter — an undoubtedly binding multilateral treaty
of the highest order — to respect and promote human rights, including under
Articles 1 (2), 1 (3), 55 and 56 of the Charter. The Declaration was adopted by
an overwhelming majority of Member States and with the support of indigenous
peoples worldwide and, as noted earlier, the few States that voted against the
Declaration each subsequently reversed their positions. Especially when
representing such a widespread consensus, General Assembly resolutions on
matters of human rights, having been adopted under the authority of the Charter
itself, can and do inform Member States’ obligations under the human rights
clauses of the Charter. [see Ian Brownlie, Principles of Public International
Law (Oxford, 7th ed., 2009), p. 15.]

Second, many of the basic
rights affirmed in the Declaration constitute customary international law
because they are well-established principles that most States recognize and
expect must be complied with:

…some aspects of the
Declaration — including core principles of non-discrimination, cultural integrity,
property, self-determination and related precepts that are articulated in the
Declaration — constitute, or are becoming, part of customary international law
or are general principles of international law, as found by the International
Law Association after a committee of experts conducted an extensive survey of
international and State practice in relation to the Declaration.2 A norm of customary international law arises when a
preponderance of States (and other actors with international personality) converge
on a common understanding of the norm’s content and generally expect compliance
with, and share a sense of obligation to, the norm. It cannot be much disputed
that at least some of the core provisions of the Declaration, with their
grounding in well-established human rights principles, possess these
characteristics and thus reflect customary international law.

Third, the Special
Rapporteur identifies that the rights contained within the Declaration reflect
rights that are recognized in a number of legally binding human rights treaties
and the Declaration consequently informs the interpretation and application of
those treaties:

…the Declaration is an
extension of standards found in various human rights treaties that have been
widely ratified and that are legally binding on States. Human rights treaties
with provisions relating to the rights of indigenous peoples include the
International Covenant on Civil and Political Rights, the International
Covenant on Economic, Social and Cultural Rights, and the International
Convention on the Elimination of All Forms of Racial Discrimination. The human
rights treaty bodies that interpret and apply these treaties now frequently
apply their provisions in ways that reflect the standards in the Declaration
and sometimes explicitly refer to the Declaration in doing so. This happens, in
particular, with regard to treaty provisions affirming principles of
non-discrimination, cultural integrity and self-determination: principles that
are also incorporated into the Declaration and upon which the Declaration
elaborates with specific reference to indigenous peoples. Although the
Declaration is not necessarily dispositive when interpreting a treaty the
provisions of which intersect with those of the Declaration, it provides important
guidance of significant weight.

In any case, the Special Rapporteur also points
out that the status of the Declaration and the weight given to it ought not to
be measured by its technical legal significance:

Whatever its legal
significance, moreover, the Declaration has a significant normative weight
grounded in its high degree of legitimacy. This legitimacy is a function not
only of the fact that it has been formally endorsed by an overwhelming majority
of United Nations Member States, but also the fact that it is the product of
years of advocacy and struggle by indigenous peoples themselves. The norms of
the Declaration substantially reflect indigenous peoples’ own aspirations,
which after years of deliberation have come to be accepted by the international
community. The Declaration’s wording, which has been endorsed by Member States,
explicitly manifests a commitment to the rights and principles embodied in the
Declaration. It is simply a matter of good faith that States adhere to that
expression of commitment to the norms that indigenous peoples themselves have
advanced.

The Special Rapporteur
suggests that arguments that characterize the Declaration as strictly
non-binding and without legal obligation are fundamentally flawed and simply
stand in the way of effective implementation of recognized human rights
standards:

…the significance of the
Declaration is not to be diminished by assertions of its technical status as a
resolution that in itself has a non-legally binding character. The Special
Rapporteur reiterates that implementation of the Declaration should be regarded
as political, moral and, yes, legal imperative without qualification.

Ahi-kā-roa

Ahi-kā-roa literally means "the long-burning fires". It is a Māori concept that encapsulates the idea that decision-making authority and rights associated with land are maintained through the connection to that land and the fulfillment of obligations in relation to it.

About Me

I am of Ngāti Kahungunu and Te Aitanga-a-Māhaki descent. I am a lecturer at the Faculty of Law, Victoria University of Wellington. My primary research interests relate to the Treaty of Waitangi and indigenous legal traditions. Before joining the faculty in 2006, I worked in a number of different roles at the Waitangi Tribunal, Māori Land Court, and the Office of Treaty Settlements. I have recently completed a PhD through the University of Victoria, British Columbia. My dissertation is entitled 'The Treaty of Waitangi Settlement Process in Māori Legal History'. I am the Co-Editor of the Māori Law Review